UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00741

DELIVERED : Thursday, 20 October 2022

FILE NO. : U 65 OF 2022

Applicant

AND

Department of Education WA

Respondent

CatchWords : Industrial Law (WA) - Application for unfair dismissal to be dismissed - Want of jurisdiction - Jurisdiction of commission - Public Service Appeal Board - Government officer - Laboratory Technician - Administrative or clerical duties - On the salaried staff - Respondent's interlocutory application upheld - Unfair dismissal application dismissed for want of jurisdiction

Legislation : Australian Constitution s 109

  Fair Work Act 2009 (Cth) s 12, s 13, s 14, s 26(1) s 29(1), s 133, s 170, s 172(2), s 172(3)

  Industrial Relations Act 1979 (WA) s 7, s 23(1), s 27(1)(a), s 29, s 29(1)(c), s 80C(1), s 80E(1), s 80I  

  Public Service Management Act 1994 (WA) s 5(1)(c)(i)

  School Education Act 1999 (WA) s 235(1)(c)   

Result : Order Issued

Representation:

Applicant : In person

Respondent : Ms E Negus (of counsel)

Case(s) referred to in reasons:

Alexander Byers v Minister for Corrective Services [2022] WAIRC 00186; 102 WAIG 252

Bellamy v Chairman, Public Service Board [1986] WAIRC 11579; (1986) 66 WAIG 1579

Federated Clerks Union v Cary (1977) 57 WAIG 585

Fenton v WA Country Health Service – SW [2021] WAIRC 00214; (2021) 101 WAIG 585

Rutherford v Hausner [2011] FMCA 1033

United Voice v J Markoff Family Trust T/A Belrose Care [2012] FMCA 406

Reasons for Decision

The respondent’s interlocutory application

1         On 6 July 2022, the respondent filed an application for an order that the applicant’s unfair dismissal application be dismissed for want of jurisdiction on the basis that the applicant was a government officer and therefore there is no jurisdiction for the applicant’s appeal in the general jurisdiction of the Commission, with any appeal against dismissal required to be made to the Public Service Appeal Board (respondent’s interlocutory application).

2         Section 27(1)(a) of the Industrial Relations Act 1979 (WA) (Act) relevantly states:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

 (i) that the matter or part is trivial; or

 (ii) the further proceedings are not necessary or desirable in the public interest; or

 (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

 (iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

Background

3         On 29 April 2022, the applicant filed a Form 2 – Notice of claim of harsh, oppressive or unfair dismissal (unfair dismissal application) claiming that she was unfairly dismissed on or around 24 April 2022 from her position as a Laboratory Technician, which had commenced on 15 October 2015.

4         On 6 July 2022, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application (Employer Response). In the Employer Response, the respondent agrees that the applicant commenced employment on 15 October 2015 but states that this was on a casual basis, with the applicant subsequently being employed on fixed term contracts and commencing employment as a permanent employee on 24 April 2017. In the Employer Response, the respondent raises the jurisdictional objection that the applicant was a government officer, and therefore any appeal against the applicant’s dismissal is required to be made to the Public Service Appeal Board (Board).

5         At the same time as filing the Employer Response, the respondent filed the respondent’s interlocutory application.

6         On 11 August 2022, Directions (2022 WAIRC 00611) were issued by consent on the following terms:

(a) THAT the question of whether the applicant is a government officer for the purposes of section 80E(1) of the Industrial Relations Act 1979 (WA) be determined as a preliminary issue (jurisdictional issue).

(b) THAT the respondent file any documentary evidence and written submissions relevant to the jurisdictional issue by no later than 16 August 2022.

(c) THAT the applicant file any responsive documentary evidence and written submissions relevant to the jurisdictional issue by no later than 30 August 2022.

(d) THAT subject to further order, the jurisdictional issue be determined on the papers.

(e) THAT there be liberty to apply.

Respondent’s contentions

7         On 16 August 2022, the respondent filed its written submissions contending that s 80E(1) of the Act provides the Board with the jurisdiction to hear any appeal by a government officer.

8         The respondent submits that the Board’s jurisdiction ousts the general jurisdiction of the Commission to hear applications claiming unfair dismissal by government officers: Bellamy v Chairman, Public Service Board [1986] WAIRC 11579; (1986) 66 WAIG 1579, 1581.

9         The respondent submits that if the applicant was a government officer, any appeal against a decision that she be dismissed must be made to the Board.

10      The respondent submits that s 80C(1) of the Act defines the term ‘government officer’ and the applicant falls within paragraph (b), namely, ‘every other person employed on the salaried staff of a public authority’.

11      The respondent submits that the applicant was employed in the Department of Education (Department) and the Director General of the Department was the applicant’s ‘employing authority’: s 5(1)(c)(i) of the Public Service Management Act 1994 (WA). The respondent submits that it is ‘uncontroversial’ that the Department is a ‘State Government department’ and therefore a ‘public authority’: s 7 of the Act.

12      The respondent submits that the remaining question is whether the applicant was ‘on the salaried staff of’ the Department.

13      The respondent relies on Kathleen Margaret Fenton v WA Country Health Service - SW [2021] WAIRC 00214; (2021) 101 WAIG 585 (Fenton), in which the Board chaired by Cosentino SC examined the case law regarding what it means to be ‘on the salaried staff’ of a public authority for the purposes of the definition of ‘government officer’ at [46]-[50] (emphasis added):

…As Kenner C identified in McGinty, the concept of a fixed payment is central.

We therefore return to what is the ordinary and natural meaning of the phrase “salaried staff”. The earlier decisions we have referred to above refer to various dictionary definitions, and it is helpful to briefly revisit those. The Macquarie Dictionary meaning of “salary” is:

…a fixed periodical payment paid to a person for regular work or services, especially work other than that of a manual, mechanical, or menial kind.

The Oxford English Reference Dictionary definition of “salary” is:

A fixed regular payment, usually monthly or quarterly, made by an employer to an employee, esp. a professional or white-collar worker (cf wage).

The Oxford definition references the definition of wage for clarification of meaning. “Wage”, then, is defined:

…a fixed regular payment, usually daily or weekly, made by an employer to an employee, especially to a manual or unskilled worker (cf salary).

We consider these definitions are most helpful in understanding the phrase “salaried staff” in s 80C. From these definitions one can appreciate the subtlety of difference between “salary” and “wages”. Once it is accepted that the words are intended to limit the class of employees to whom it applies, it follows that the dichotomy between salary and wages is important. Contrasting these two concepts, wages and salary, assists to clarify where the focus of the difference between wages employees and salaried staff lies. Both are paid a fixed, regular/periodical payment. Accordingly, a focus on computation of earnings by time is of little utility. Rather, the key differences are in the frequency of payments and the services for which the payment is made. Commissioner Kenner arrived at this point in McGinty when he succinctly described salaried staff as “generally those in the administrative, technical and professional ranks of the public sector”.

14      The respondent submits three reasons as to why the applicant, a Laboratory Technician, was ‘on the salaried staff of’ the Department:

(a) Laboratory Technicians are treated as government officers;

(b) The applicant performed clerical and administrative or technical duties; and

(c) The applicant was paid a fixed fortnightly amount.

15      In relation to the first reason, that Laboratory Technicians are treated as government officers, the respondent submits that the union representing Laboratory Technicians (being the Civil Service Association of Western Australia) and the Public Service Arbitrator treat Laboratory Technicians as government officers under the Act: cl 3 of the Education Department Ministerial Officers Salaries Allowances and Conditions Award 1983 No. 5 of 1983 (Award) and cl 5.2 of the Department of Education (School Support Officers) CSA Agreement 2021 (Agreement).

16      Clause 3 of the Award states:

This Award shall apply to all Government Officers employed by the Minister for Education (hereinafter referred to as the Minister) in an administrative, clerical or general capacity who are not employed under the Government Officers Salaries, Allowances and Conditions Award 1989…

17      Clause 5.2 of the Agreement states:

This Agreement shall apply to all Employees who are members or eligible to be members of the Union and covered by the Award…

18      The respondent submits that the term ‘Government Officers’ is not explicitly defined by the Award, but the Award should be interpreted as adopting the definition in the Act for two reasons.

19      First, the words at cl 3 of the Award that ‘all Government Officers … not employed under the Government Officers Salaries, Allowances and Conditions Award 1980 [sic]’ indicates that the meaning of ‘Government Officer’ under both Awards is the same. The respondent submits that the Government Officers Salaries, Allowances and Conditions Award 1989 applies to ‘Government officers’ (cl 4) and defines ‘Officer’ as ‘a Government officer within the meaning of the Industrial Relations Act 1979’ (cl 6).

20      Second, the term ‘Officer’ which is used throughout the Award to refer to covered employees is defined in the Award to mean ‘an employee pursuant to section 235(1)(c) of the School Education Act 1999’ (School Education Act). The respondent submits that employees engaged pursuant to s 235(1)(c) of the School Education Act are government officers under the Act. Section 235(1) of the School Education Act provides:

235. Categories of staff to be employed

(1) To enable the functions of the department to be performed persons are to be employed in the department —

(a) as public service officers appointed or made available under Part 3 of the PSMA; or

(b) as members of the teaching staff; or

(c) as other officers; or

(d) as wages staff.

21      The respondent submits that officers employed under s 235(1)(c) of the School Education Act are not ‘wages staff’ and therefore they are ‘on the salaried staff’ of the Department.

22      The respondent submits that whilst the Award and Agreement refer to classifications by level rather than job description, it is clear that the Award and Agreement apply to Laboratory Technicians because the position is referred to in cl 7B of the Award.

23      The respondent submits that the Award (and its predecessors) have been registered by the Public Service Arbitrator from 1978 and the Agreement (and its predecessors) have also been registered by the Public Service Arbitrator.

24      The respondent submits that the Public Service Arbitrator has jurisdiction in relation to government officers. The respondent submits that the registration of the Award and Agreement by the Public Service Arbitrator means the Civil Service Association and the Public Service Arbitrator have treated employees covered by the Award and the Agreement as government officers under the Act from 1984, when the current definition of government officer was included in the Act.

25      In relation to the second reason, that the applicant performed clerical and administrative or technical duties, the respondent submits that the services for which the applicant was paid were clerical and administrative and/or technical duties.

26      The respondent submits that clerical duties primarily relate to the recording of information: Federated Clerks Union v Cary (1977) 57 WAIG 585, 587 (Brinsden J, Wickham J agreeing).

27      The respondent relies on the definition of ‘administrative’ in the Oxford Dictionary and submits that administrative duties are broader and relate to the running of a business or organisation:

of, relating to, or concerned with administration (in various senses); (in later use esp.) relating to or required for the running of a business, organization, etc.

28      The respondent submits that a number of the applicant's duties were clerical because they required the recording of information, and/or administrative because they related to the running of the science laboratory. The respondent submits that such duties included:

(a) providing advice to other employees on various matters (including curriculum requirements, suitable science experiments and matters such as safe use and documentation of science equipment, chemicals and biological materials);

(b) managing laboratory stocks, including ordering of supplies and equipment, liaison with suppliers, and completion of annual stock‑takes;

(c) assisting with coordinating the science budget, including monitoring expenditure, providing advice as required, and managing petty cash and business card accounts; and

(d) inducting and training Level 1 Technicians (if present) and inducting new science teachers in the safe use of chemicals and equipment.

29      The respondent submits that a number of the applicant's duties were technical because they required particular scientific knowledge and/or expertise. Such duties included preparing chemicals, equipment and materials, designing and constructing teaching aids and collecting and caring for living organisms.

30      In relation to the third reason, that the applicant was paid a fixed fortnightly amount, the respondent submits that the applicant was paid a fixed fortnightly amount under cl 10.6 of the Agreement and cl 10(7) of the Award such that payments to the applicant therefore possess the key features of a salary identified in Fenton at [46]-[50] as being fixed and less frequent than the payment of wages.

Applicant’s contentions

31      The applicant contends that her unfair dismissal application should be heard by the Commission pursuant to the industrial award that she was contracted under.

32      The applicant relies upon s 29(1) of the Fair Work Act 2009 (Cth) (Fair Work Act), which states that:

A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

33      The applicant also relies upon s 109 of the Australian Constitution (Constitution), which states that:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

34      The applicant submits that the Fair Work Act and the Constitution require the Award and the Agreement to be used to determine that the Commission has jurisdiction to hear and determine her unfair dismissal application as they are the agreements under which she was employed.

35      The applicant relies on cl 56(5) of the Award, which states:

Where the dispute cannot be resolved within five (5) working days of the Association representatives' referral of the dispute to the employer or his/her nominee, either party may refer the matter to the Western Australian Industrial Relation Commission.

36      The applicant also relies on cl 61.6 of the Agreement, which states:

Where the dispute cannot be resolved within five working days of the Union representative's referral of the dispute to the Employer or his/her nominee, either party may refer the matter to the WAIRC.

Consideration

37      Section 29 of the Act outlines who may refer an industrial matter to the Commission. The applicant has brought an unfair dismissal application pursuant to s 29(1)(c) of the Act.

38      The Commission’s jurisdiction to ‘enquire into and deal with any industrial matter’, which necessarily includes the applicant’s unfair dismissal application, is expressly stated as being ‘subject to this Act’: s 23(1) of the Act.

39      Section 80E(1) of the Act provides the Public Service Arbitrator with exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer.

40      Section 80C(1) of the Act defines a ‘government officer’ as including ‘every other person employed on the salaried staff of a public authority’: paragraph (b) of the definition.

41      A ‘public authority’ is defined in s 7 of the Act to include a ‘State Government department’.

42      There is no dispute that the applicant is employed in the Department. There is also no dispute that the Department is a ‘State Government department’ and therefore a ‘public authority’ under the Act.

43      I agree with the respondent’s submissions that in light of s 80E(1), s 80C(1) and s 7 of the Act what remains to be determined is whether the applicant was employed ‘on the salaried staff’ of the Department.

44      If the applicant was employed ‘on the salaried staff’ of the Department, she will be considered a ‘government officer’ and therefore the Board has exclusive jurisdiction to hear any appeal regarding the applicant’s dismissal.

45      If the applicant was not employed ‘on the salaried staff’ of the Department, she will not be considered a ‘government officer’ and therefore the Commission does have jurisdiction to hear and determine the applicant’s unfair dismissal application, such that the respondent’s interlocutory application must be dismissed.

46      The applicant submits that the Commission has jurisdiction to hear the applicant’s unfair dismissal application because:

(a) The Fair Work Act provides that a modern award or enterprise agreement prevails over a law of the State, presumably the Act, to the extent of any inconsistency; and

(b) The Constitution provides that when a State law, presumably the Act, is inconsistent with a law of the Commonwealth, presumably the Fair Work Act, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.

47      The references to a ‘modern award’ and an ‘enterprise agreement’ in the Fair Work Act are references to a modern award ‘made under Part 2-3’ of the Fair Work Act and an enterprise agreement ‘made as referred to in’ s 172(2) and s 172(3) of the Fair Work Act: s 12 of the Fair Work Act.

48      Modern awards and enterprise agreements under the Fair Work Act involve national system employees and national system employers: s 133 and s 170 of the Fair Work Act. National system employers include employers that are constitutional corporations, the Commonwealth, and Commonwealth authorities: s 14 of the Fair Work Act.

49      At all times, the applicant was employed in the Department. There is no dispute that the Department is a ‘State Government department’. As a ‘State Government department’ the Department is not a constitutional corporation, the Commonwealth, or a Commonwealth authority. In short, the Department is not a national system employer under the Fair Work Act, and by extension, the applicant was not a national system employee under the Fair Work Act: s 13 of the Fair Work Act.

50      As the applicant was not a national system employee, the Fair Work Act does not apply to the applicant’s employment: s 26(1) of the Fair Work Act. As the Fair Work Act does not apply to the applicant’s employment, there is no inconsistency between a law of the State and a law of the Commonwealth that needs to be considered.

51      The applicant submits that cl 56(5) of the Award and cl 61.6 of the Agreement provides the Commission with jurisdiction to resolve the applicant’s dispute with the Department. Clause 56 of the Award and cl 61 of the Agreement are the Dispute Settlement Procedure clauses that apply if an employee covered by the Award or Agreement seeks to resolve a question, difficulty or dispute arising under the Award, or to resolve a question, difficulty or dispute arising in the course of employment under the Agreement. The applicant has brought an unfair dismissal application pursuant to s 29(1)(c) of the Act. The applicant has not sought to invoke the dispute settlement procedure in the Award or the Agreement. The dispute settlement procedure provisions of the Award and Agreement do not provide any assistance in determining the Commission’s jurisdiction in relation to the applicant’s unfair dismissal application and the respondent’s interlocutory application.

52      The employment contract issued to the applicant relevantly provides as follows:

Employer The Director General of the Department of Education

…

Classification Level/Salary Level 2, $55,189-$59,931 per annum (SSO GA 2014)

Employment Basis Permanent

Work Fraction (e.g. 1.0, 0.8) Part Time (0.8)

…

Industrial Award Education Department Ministerial Officers Salaries, Allowances & Conditions Award 1983

Industrial Agreement  School Support Officers (Government) General Agreement 2014

Legislation  School Education Act 1999 and School Education Regulations 2000

53      The School Support Officers (Government) General Agreement 2014 referred to in the applicant’s employment contract was replaced by the Department of Education (School Support Officers) CSA Agreement 2019 (2019 Agreement) (2020 WAIRC 00108). In turn, the 2019 Agreement was replaced by the Agreement (2022 WAIRC 00223).

54      Clause 5.2 of the Agreement states that the Agreement applies ‘to all Employees who are members or eligible to be members of the Union and covered by the Award.’

55      The Agreement defines an ‘Employee’ as meaning ‘an officer employed under the provisions of the Award.’

56      The Agreement defines the ‘Award’ as meaning ‘the Education Department Ministerial Officers Salaries, Allowances and Conditions Award 1983 No. 5 of 1983’. This is the same ‘Industrial Award’ referred to in the applicant’s employment contract.

57      The parties agree that the applicant was an employee to whom the Agreement applied: the respondent’s submissions at [16] and the applicant’s submissions at [4] and [6].

58      As the applicant was an ‘Employee’ under the Agreement she was also ‘an officer employed under the provisions of the Award.’

59      Clause 3 of the Award is the scope clause and states that the Award applies to all:

Government Officers employed by the Minister for Education (hereinafter referred to as the Minister) in an administrative, clerical or general capacity who are not employed under the Government Officers Salaries, Allowances and Conditions Award 1989. It does not apply to any officer employed on the teaching staff under provisions of the Education Act 1928, or the regulations made under the Act, or to any child care worker.

60      The parties agree that the applicant was an employee to whom the Award applied: the respondent’s submissions at [16] and the applicant’s submissions at [4] and [5].

61      The respondent submits that whilst the scope clause of the Award refers to ‘Government Officers’, the Award does not explicitly define the term, and the term should have the same definition as in the Act.

62      In circumstances where the parties agree that the Award applied to the applicant it follows that the scope clause wholly applied to the applicant, such that the applicant was a ‘Government Officer’ under the Award and was also ‘employed … in an administrative, clerical or general capacity’.

63      The respondent also submits that the definition of ‘Officer’ in the Award provides support for the contention that the applicant was ‘on the salaried staff of the Department’.

64      The Award defines both an ‘Employee’ and an ‘Officer’ as meaning an ‘employee pursuant to section 235(1)(c) of the School Education Act 1999’. Section 235(1)(c) of the School Education Act states (emphasis added):

235. Categories of staff to be employed

(1) To enable the functions of the department to be performed persons are to be employed in the department —

(a)  as public service officers appointed or made available under Part 3 of the PSMA; or

(b) as members of the teaching staff; or

(c) as other officers; or

(d) as wages staff.

65      Section 235(1) of the School Education Act concerns the categories of staff to be employed in the Department. The provision provides for four separate categories of staff that are employed, namely, public service officers, teachers, other officers, and wages staff. The provision also provides that ‘other officers’ are in a separate category to ‘wages staff’.

66      As previously stated, what needs to be determined is whether or not the applicant was employed ‘on the salaried staff’ of the Department such that she falls within the definition of a ‘government officer’ under s 80C(1) of the Act, such that her unfair dismissal application should be dismissed for want of jurisdiction.

67      The respondent relies on the analysis in Fenton in support for the proposition that the applicant was ‘on the salaried staff of’ the Department.

68      The Board in Fenton at [35] cites The Totaliser Agency Board v Edith Fisher (1997) 77 WAIG 1889 as the leading authority on the meaning of ‘salary’ in McGinty v Department of Corrective Services ABN 25103389163 [2012] WAIRComm 54; (2012) 92 WAIG 190 (McGinty) at [10]-[11]:

As noted above, the industrial instruments in part, still refer to the payment of “wages”. Further, s 80C of the Act does not just refer to the payment of a “salary” to a person. The statute refers to a person employed on the “salaried staff” of a public authority. Whilst the distinction between “wages employees” and “salaried staff” in terms of somewhat anachronistic “blue collar” and “white collar” employment may no longer have the connotations it once may have had, nonetheless, the legislature has sought to confine the jurisdiction of the Arbitrator to those specific employees in s 80C of the Act. They are generally those in the administrative, technical and professional ranks of the public sector.

69      Applying Fenton requires a two-step assessment process in determining whether the applicant was a government officer pursuant to s 80C(1) of the Act. Firstly, to determine if the applicant was paid a salary. Secondly, to determine if the applicant was generally working in the ‘administrative, technical and professional ranks’ of the public sector.

70      In relation to the first test, the respondent submits that the applicant was paid a fixed fortnightly amount under cl 10.6 of the Agreement and cl 10(7) of the Award.

71      This is consistent with the employment contract which refers to the applicant receiving an annual salary, as a permanent employee, employed on a part time basis of a 0.8 work fraction. There is no reference in the employment contract to the applicant being paid on an hourly basis, or on a basis that was not ‘a definite payment for personal services arising under some contract, and … computed by time’: In Re Shine; Ex parte Shine [1892] 1 QB 522 as cited in Fenton at [26]. Nor is there any reference in the employment contract to the applicant not being paid a fixed payment for the work performed: McGinty as cited in Fenton at [46].

72      The applicant does not refute that she was paid a salary, nor does she claim that she was a ‘wages’ employee.

73      For the reasons identified, I find that the applicant was paid a salary.

74      In relation to the second test, the respondent specifies the duties in the applicant’s job description that were clerical and/or administrative in nature and those that were technical.

75      I do not consider that I need to make findings about the specific duties performed by the applicant as a Laboratory Technician which were of an administrative nature and which were of a technical nature, in circumstances where:

(a) The applicant does not refute that she performed clerical and administrative or technical duties as a Laboratory Technician; and

(b) The parties agree that the Award applied to the applicant, it follows that in accordance with the scope clause of the Award that the applicant was ‘employed … in an administrative, clerical or general capacity’.

76      For the reasons identified, I find that the applicant was an employee generally employed in the ‘administrative, technical and professional ranks’ of the public sector.

77      As I have found that the applicant was paid a salary and was employed in the category of an employee generally ‘in the administrative, technical and professional ranks of the public sector’, I find that the applicant was employed ‘on the salaried staff’ of the Department.

78      Therefore, I find that the applicant was a ‘government officer’ under s 80C(1) of the Act.

79      As the applicant was a government officer, the Commission does not have jurisdiction to enquire into and deal with the applicant’s unfair dismissal application. As a government officer, the Board chaired by a Public Service Arbitrator has exclusive jurisdiction to enquire into and deal with the applicant’s industrial matter.

80      In any event, the applicant had named the ‘Department of Education WA’ as the respondent in the applicant’s unfair dismissal application. The Employer Response states that the respondent should have been identified as the ‘Director General, Department of Education’.

81      As noted above, the applicant’s employment contract names ‘The Director General of the Department of Education’ as the applicant’s employer.

82      The applicant objected to the Commission issuing an order to correct the respondent’s name to ‘Director General, Department of Education’.

83      It is the applicant’s responsibility to identify her employer in any application brought in the Commission. Failing to do so enlivens the possibility of the respondent raising another ground on which the unfair dismissal application should be dismissed, namely, that a party who is not the applicant’s employer has no case to answer in relation to the applicant’s employment: Alexander Byers v Minister for Corrective Services [2022] WAIRC 00186; 102 WAIG 252 at [4].

84      However, as I have found the applicant was a government officer it follows that the applicant’s unfair dismissal application will be dismissed for want of jurisdiction and there is no need for me to make any findings as to whether the unfair dismissal application should be dismissed on the basis that the respondent named in the unfair dismissal application has no case to answer.

Conclusion

85      The Commission’s jurisdiction to ‘enquire into and deal with any industrial matter’ is expressly stated as being ‘subject to this Act’: s 23(1) of the Act.

86      Section 80E(1) of the Act provides the Public Service Arbitrator with exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer.

87      For all the reasons outlined above, I find the applicant to be a government officer.

88      Therefore, the Commission does not have jurisdiction to hear and determine the applicant's unfair dismissal application, and the applicant’s unfair dismissal application will be dismissed for want of jurisdiction pursuant to s 27(1)(a) of the Act.

89      If the applicant seeks to appeal her dismissal, she should bring an appeal to the Board in accordance with s 80I of the Act.